The Supreme Court has ruled that the Public Service Tribunal’s decision over a pay dispute be quashed and that the matter be re-submitted for further consideration.
The ruling was made after the Public service Commission sought judicial review of the Public Service Tribunal’s decision on June 18, 2019 in relation to the salary paid to Eileen Fonua.
Lord Chief Justice Whitten, presiding, said the proceeding raised issues of broad importance for the Tongan Public Service, in particular, the proper approach to determining the starting salary for persons who were re-employed in the Service,
In his lengthy report on the case, His Honour noted that Tribunal did not participate in the proceeding. He took this to mean the Tribunal was content to abide by the decision of the Court.
The case centred on an appeal by Eileen Fonua over the salary band awarded to her when she re-joined the Public Service.
Mrs Fonua was first appointed to the Public Service on February 1, 1997 in the Ministry of Education and Training as a trained uncertified teacher.
She resigned from the Public Service on September 28, 2012.
From September 2012 to December 2014, she was employed as a Project Coordinator at the Ministry of Lands, Environment, Climate Change and Natural Resources.
From January 2015 to December 2017, she worked for the Ministry of Energy, Information, Disaster Management, Environment, Climate Change and Communications (MEIDECC) as a National Coordinator in a ‘Management of Marine and Coastal Biodiversity’ project.
On November 17, 2017 she was reappointed to the Public Service in the position of Principal Fisheries Officer, at the Ministry of Fisheries. The position was within Band I which, as shown above, provided a salary range of TP$30,240 to TP$45,360,
The Public Service Commission set her base salary at TP$30,240 being the minimum point of the Band I range.
The PSC argued that while her educational background, experience and qualities met the minimum requirements for the position, she did not possess any of the “Desirable” qualities or experience, and therefore was ineligible for a higher entry salary;
Her base exit salary was calculated as TP$28,987, and not by reference to the Total Remuneration Package referred to in the Remuneration Authority Report, which is calculated as the basic salary plus 10% superannuation, and which would result in a figure here of TP$31 ,886.
Her re-employment in a higher band meant that her pay was to be calculated under the normal rules for starting pay which is the minimum of the appropriate salary scale which was TP$30,240.
Mrs Fonua appealed the Commission’s decision to the Public service Tribunal. She sought a decision from the Tribunal that her basic starting salary be as recommended by the Report 31 of TP$37,806 ‘being the closest entry point’ to her then current salary on entry and be set at the recommended TP$41,587.
She argued that the Commission’s decision to grant her the minimum entry point of the relevant Band rigidly applied the relevant policy so as to exclude the merits of her case; failed to have regard to relevant matters and was unreasonable having regard to her qualifications, experience and salary at time of re-entry into the public service.
She contended that her starting salary should have been TP$37,480, equivalent to her salary under her contract of employment with the Civil Society Forum of Tonga. She said the Commission should have taken into account that she had a degree with at least five years of relevant work experience at senior management level in government which was consistent with one of the requirements for the position of Principal Fisheries Officer. She also had years of work experience in government and the private sector, which should have been considered as a factor for a higher salary.
The Tribunal conducted a hearing on May 21, 2019, in which the Solicitor General appeared for the Commission and Mrs Tupou appeared for Mrs Fonua.
On June 18, 2019, the Tribunal ruled that Mrs Fonua be paid TP$32,843 with effect from the date of assumption of duty.
The court heard an argument that when a decision was made, the decision maker must understand correctly the law that regulates their decision-making power and must give effect to it.
They must proceed on a correct interpretation of relevant law and must have taken account of relevant considerations and ignored irrelevant considerations. To fail in any of those respects was an error of law.
Lord Chief Justice Whitten, in a lengthy ruling, said the Tribunal provided inadequate reasons for its decision; failed to take into account relevant considerations and misdirected itself on the proper interpretation and application of Instruction.
The Tribunal’s decision of June 18, 2019, was therefore quashed.
The judge said that the Public Service Tribunal must make its determination of the dispute in accordance with the law and regard for the reasons he had presented for making his judgement.
